During the Federal Constitutional Convention, the framers addressed whether even to include impeachment trials in the Constitution, the venue and process for such trials, what crimes should warrant impeachment, and the likelihood of conviction. Rufus King of Massachusetts argued that having the legislative branch pass judgment on the executive would undermine the separation of powers; better to let elections punish a President. “The Executive was to hold his place for a limited term like the members of the Legislature,” King said, so “he would periodically be tried for his behaviour by his electors.” Massachusetts’s Elbridge Gerry, however, said impeachment was a way to keep the executive in check: “A good magistrate will not fear [impeachments]. A bad one ought to be kept in fear of them.”
Another issue arose regarding whether Congress might lack the resolve to try and convict a sitting President. Presidents, some delegates observed, controlled executive appointments which ambitious Members of Congress might find desirable. Delegates to the Convention also remained undecided on the venue for impeachment trials. The Virginia Plan, which set the agenda for the Convention, initially contemplated using the judicial branch. Again, though, the founders chose to follow the British example, where the House of Commons brought charges against officers and the House of Lords considered them at trial. Ultimately, the founders decided that during presidential impeachment trials, the House would manage the prosecution, while the Chief Justice would preside over the Senate during the trial.
The founders also addressed what crimes constituted grounds for impeachment. Treason and bribery were obvious choices, but George Mason of Virginia thought those crimes did not include a large number of punishable offenses against the state. James Madison of Virginia objected to using the term “maladministration” because it was too vague. Mason then substituted “other high Crimes and Misdemeanors” in addition to treason and bribery. The term “high Crimes and Misdemeanors” was a technical term—again borrowed from British legal practice—that denoted crimes by public officials against the government. Mason’s revision was accepted without further debate. But subsequent experience demonstrated the revised phrase failed to clarify what constituted impeachable offenses.